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Law in Contemporary Society
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The Viability of Surrogacy-- By TamarLisbona - 19 Feb 2016 As members of American society, our normative ideals change over time, ebbing and flowing against the grain of tradition. One area in which the discrepancy of this tide is most strongly felt is in family law and reproductive health. While the abortion discussion and debate has by no means quelled, with the advance of technology over the past sixty years, the abortion discussion has expanded into a dialogue on reproductive rights in general and what medical techniques parents can use ethically to bear children. One such issue is surrogacy. Traditionally, surrogacy has been defined to include any woman physically carrying a child to gestation for the purpose of giving it to another party who cannot have children. While that practice alone merits ethical consideration, the more specific practice of gestational surrogacy, in which a woman can elect to incubate an inseminated egg with which she has no genetic connection often in exchange for a sum of money, elicits legal and moral questions that reflect the changing American ethos and legal landscape. The United States is the “wild West” of surrogacy. Twenty-two states have legalized paid surrogacy, four have made it illegal or criminalized it, and the remaining twenty-four states have no governing law either way. The state of New York is currently grappling with the legalization and decriminalization of remunerated surrogacy. Currently, 22 states have legalized it, 4 have made it illegal, and the rest have no case law on the matter. New York is in fact the only state in which the practice is punishable criminally. As the practice becomes more common, our legal landscape will either envelop paid gestational surrogacy into the fold, or reject it as antithetical to current legal thinking. Examining the issue from the perspective of a few parties at stake, it can be seen that while surrogacy has its considerations and should not be seen as a simple, unregulated business transaction, it is a novel medical practice that, if used effectively, can enhance the welfare of genetic parents and gestational carriers alike.Financial as well as ethical and emotional concerns from the perspective of the surrogate can be overcome or mitigated with effective regulation.The natural economic drivers present in the market for surrogacy can be manipulated to avoid exploitative scenarios.Carriers may have many reasons for electing to help biological parents conceive. Primary among those reasons are financial and emotional concerns. Foregoing a discussion of international surrogacy, the cost of surrogacy in the United States is approximately $100,000 per pregnancy. Income discrepancy in the United States combined with an uptick in demand for surrogate carriers could give rise to an oppressed “surrogate class” in which increased supply of surrogate carriers drives down the price of the service to levels that could hardly be considered fair. While some may argue that this scenario is inevitable, with proper government regulation designed to guarantee the health, safety, and welfare of the carrier, this practice could be used to redistribute wealth effectively. Certain measures such as price floors for service, standardization of medical practices, and actions carriers could raise against genetic parents or healthcare providers in court could help reduce the instance of exploitative scenarios.Emotional and ethical concerns on the part of the gestational surrogate are complicated, yet inefficient outcomes can be addressed by contract.Emotional and ethical concerns from the perspective of the carrier must be addressed as well for a regulated gestational surrogacy scheme to be viable. As their bellies grow, women may naturally form bonds with the fetuses they are carrying. In the famous “Baby M” case, a surrogate mother refused to relinquish custody of the child she had contracted to carry for another couple Matter of Baby M, 109 N.J. 396, 537 A.2d 1227 (1988). In a related but alternative scenario, a carrier may also be emotionally and ethically conflicted if biological parents renege on their promise and no longer want the child once it has been implanted in the uterus of the carrier. This situation is rife with ethical conflict that may be difficult to mitigate, yet traditional contract law may be of use here.Surrogacy provides a benefit to potential parents that outweighs the costs.From the perspective of the biological family, surrogacy may be an attractive option, despite its complex financial, ethical, and emotional quandaries. While families come in all shapes and sizes, the birth narrative retains its place in American lore and parents continue to place value on rearing biological children. Yet, for many individuals, ranging from those who have suffered illness, to same-sex couples, to celebrities that would like to retain their physiques, the natural gestational process is simply not an option. The next best thing, having a friend or family member carry your child, seems emotionally fraught. For those who can afford it, gestational surrogacy seems to offer the “best of both worlds.” Given the high cost, however, an increased desire for surrogacy coupled with an increase in supply of carriers could create an elite “class” of parents, which may have detrimental effects on society. This scenario should be contemplated and examined by legislators guided by ethicists and medical professionals with relevant experience.American society at large may be lukewarm to surrogacy, but this is not an insurmountable barrier.Reeling from the Civil War and World War II, American society continues to reject anything that is reminiscent of slavery or genetic engineering, and perhaps rightly so. Autonomy is an American principle, and the physical manifestation of the body is sacred and cannot be infringed upon without due process of law. It is culturally accepted that one cannot sell his body parts in any legitimate marketplace. This is true for the sale of children as well. While these facts could be used to cut against paid surrogacy, as the definition of family and family values continue to change in this country, the need for a legal and safe method for conception will be essential to avoiding exploitation and Americans should be free to experiment with new and novel options.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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